Policy and procedure for the disclosure of information in the public interest (Whistleblowing in the NHS)

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1 NATIONAL INSTITUTE FOR HEALTH AND CLINICAL EXCELLENCE SPECIAL HEALTH AUTHORITY Policy and procedure for the disclosure of information in the public interest (Whistleblowing in the NHS) Responsible Officer Associate Director of Human Resources Author: Policy Development Group Date Effective 1 October 2007 From: Dated Last N/A Amended Review Date 1 October 2009 Audience NICE staff Page 1 of 9

2 NATIONAL INSTITUTE FOR HEALTH AND CLINICAL EXCELLENCE SPECIAL HEALTH AUTHORITY 1. Policy Policy and procedure for the disclosure of information in the public interest (Whistleblowing in the NHS) 1.1 NICE aims to be a good employer and to encourage open communication between staff and their managers, in both directions. Backed by an approachable Human Resources team, this should provide every NICE employee with the opportunity to comment freely and constructively on issues that may cause them concern in the workplace. There is an obligation for every member of staff to report genuine concerns. 1.2 We hope that such situations are unlikely, but they could conceivably arise when there are concerns of criminal activity or misconduct including (but not limited to): breach of a legal obligation (including negligence, breach of contract, breach of administrative law) miscarriage of justice danger to health and safety or the environment unauthorised disclosure of information or breach of confidentiality use of confidential information for personal gain conflicts of interest with personal or outside business commitments misuse of NICE financial or other resources separation of roles during tendering receipt of gifts or hospitality suspicions of abuses such as unfair appointments inappropriate or unprofessional conduct discrimination, bullying, harassment or victimisation. covering up any of the above in the workplace Page 2 of 9

3 1.3 The Institute is committed to ensuring that any staff concerns of this nature will be taken seriously and investigated. 1.4 NICE will keep any disclosure made under this policy as confidential as possible and will only disclose information to individuals on a need-to-know basis. These individuals may include, but will not be limited to, those named when making the disclosure and any witnesses or employees who can provide further information in relation to the disclosure. 1.5 NICE has a statutory duty 1 to protect employees, who raise concerns under this policy, from less favourable treatment. NICE therefore, prohibits any retaliatory action against any employee for raising legitimate concerns or questions regarding such matters or for reporting suggested violations. 1.6 NICE will make every effort to ensure that the Whistleblower suffers no adverse repercussions from individuals under its control as a result of making the disclosure. Anyone found to be victimising a Whistleblower may be subject to disciplinary action, up to and including dismissal. 1.7 Any concern that is raised maliciously may result in disciplinary action against the member(s) of staff who raised it. 1 Public Interest Disclosure Act 1998 and the Employment Rights Act 1996 (s.43) Page 3 of 9

4 2. Who is this policy is for? 2.1 This policy is for people employed by the National Institute for Health and Clinical Excellence. For the purposes of this policy only, this is someone who is: Employed on a permanent or fixed term contract of employment; On secondment to NICE; On a temporary contract or employed through an agency to work for NICE; An independent consultant for NICE; or Contractors and suppliers of services to NICE. Appointed as a Non-Executive Director and Committee members Including Chairs to NICE 3. Guiding principles 3.1 To ensure that this policy is adhered to, and to assure staff that their concern will be taken seriously, the Institute will: Not allow the person raising the concern to be victimised for doing so; Treat victimisation of whistle blowers as a serious matter, that may lead to disciplinary action that may include dismissal; Not attempt to conceal evidence of poor or unacceptable practice; Take disciplinary action if an employee destroys or conceals evidence of poor or unacceptable practice or misconduct; Ensure confidentiality clauses in employment contracts do not restrict, forbid or penalise whistle blowing; Liaise with the Department of Health and other organisations (see section 5) to whom staff report malpractice. Page 4 of 9

5 4. Procedure 4.1 Any individual who wishes to report a concern should initially take their concerns in person either to their line manager (in the case of employees), HR, their Centre Director, Deputy Chief Executive, or the Chief Executive. It is recognised, however, that an individual may feel that speaking up could be considered as disloyal to either their colleagues or the Institute or an individual may feel they may be victimised or harassed if they do so. Where this is the case, the individual may report their concerns to one of the two Non Executive sponsors of this policy, who will review the allegations and either advise the individual on next steps or instigate an investigation. 4.2 The Non-Executive sponsors are:- Audit Committee Chair - Jonathan Tross - (for whistleblowing allegations relating to financial matters); HR Committee Chair - Mercy Jeyasingham - (for all other whistleblowing allegations); 4.3 Reporting of a concern can be done either verbally or in writing. 4.4 It is recognised that for some individuals, raising a concern under this procedure may be a daunting and difficult experience. The individual(s) may choose to be accompanied or represented by a companion, colleague or trade union representative at any stage of this procedure. Staff members are advised to seek advice from their trade union steward or staff representative as early as possible in the procedure. Counselling services (e.g. OASIS) are available to any staff involved in a whistleblowing procedure. 4.5 All reported concerns will be recorded and escalated to the appropriate Centre Director or where necessary to the Chief Executive, who, in conjunction with the Associate Director of Human Resources, will appoint an appropriate individual to undertake the investigation (this may be internal or external). The Associate Director Page 5 of 9

6 of Human Resources will be able to provide advice on the application of this policy throughout the investigation. 4.6 The nominated investigating officer will establish and record the basis of the concerns that have been raised and establish what further actions are required. The individual raising the concern will be advised of the outcome of the investigation as soon as possible, normally within two weeks of the date of their disclosure. Where a longer period is needed for investigation, the member(s) of staff will be informed in writing. 4.7 The Chief Executive or a nominated Non-Executive Director or the Chair of the Institute (if appropriate) will be informed of all reported concerns and the actions being taken. The nominated Non-Executive Director or the Chair of the Institute only will be informed if the reported concerns relate to the Chief Executive. 4.8 In the case of disclosures on alleged fraud and corruption, the Chairman of the Audit Committee and the Institute s auditors will be informed by the chief financial officer If, following an investigation, there is found to be a case to answer, the NICE Disciplinary Policy will then apply. A member of the Human Resources team will be able to provide support and advice, as required It is envisaged that investigations will be concluded within 15 working days from the receipt of the complaint as far as reasonably possible. Whether this is possible will largely be dependent on the complexity of the investigation, the availability of the individual s involved and the availability of evidence. Whilst, it is important that these matters are investigated quickly, the quality of the investigation must not be compromised. In the event that the investigation extends beyond 15 working days, all parties will be informed and kept up to date with progress. 2 There are particular responsibilities under the Standing Financial Instructions (SFIs) with respect to suspected financial irregularities, which must be followed and therefore in specified circumstances the provisions of the SFIs take precedence over this policy. Page 6 of 9

7 4.11 This policy is intended to provide employees with an opportunity within NICE to raise concerns. If, however, the complainant is not satisfied with any action taken they may appeal in writing to one of the Board level sponsors (as named in section 4), or take the matter outside the Institute. There are a number of sources available to report your concern: NHS Fraud & Corruption Reporting Line Audit Commission for local authorities and the National Health Service in England and Wales Health & Safety Executive In addition, section 5 provides a list of sources for confidential advice and guidance. Trade Union organisations will also be able to offer advice for members Complainants should ensure that they do not disclose confidential information which is not directly relevant to the whistleblowing allegation. Employees will need to confirm which information is confidential with the person or organisation they decide to contact. 5. Independent advice and further reading 5.1 Employees who feel unsure about whether or how to raise a concern or want confidential advice can contact the independent charity Public Concern at Work on or Their lawyers can give free confidential advice on how to raise a concern about serious malpractice at work. 5.2 Free information and advice can also be obtained from the Advice, Conciliation and Arbitration Service (ACAS) Telephone: You may feel that it is more appropriate to report a matter to another organisation. Other organisations concerned with standards in the NHS include: Audit Commission for local authorities and the National Health Service in England and Wales Health & Safety Executive Page 7 of 9

8 NHS Fraud & Corruption Reporting Line Public Concern at Work and ACAS can advise on the circumstances when it is more appropriate to contact an outside body. 5.5 For further reading staff may refer to: Guidance produced by the Counter Fraud and Security Management Service Guidance produced by Public Concern at Work Signed: Date: On behalf of the National Institute for Health and Clinical Excellence Signed: On behalf of NICE Unison Branch Date: Signed: On behalf of NICE Staff Representatives Date: Approved by the NICE Board: Date: Page 8 of 9

9 Whistleblowing Investigation Flow Chart Step 1 - Receipt of individual s concern Step 2 - Investigation Officer (IO) is appointed by Centre Director or Chief Executive Step 3 -IO acknowledges receipt of complaint Careful notes are taken by the IO of all discussions that take place throughout the investigation. Step 4 - IO meets with individual raising complaint to ensure complete understanding of the issues and to outline the action that will be taken in respect of the investigation Step 5 - IO meets with individual against whom the complaint is against to discuss the issues and receive their response. The IO should write to this individual giving at least 5 working days notice of the meeting and advising the individual of his/her right to representation. Step 6 - IO meets with any witnesses as appropriate. The IO should write to these individuals giving at least 5 working days notice of the meeting and advising them that their involvement as a witness is voluntary and they may refuse to act as a witness if they so wish but if they wish to act as a witness then they are entitled to representation by a work colleague, trade union or staff representative. Step 7 - The IO reviews all the evidence gathered and if their are gaps/further queries arranges to meet again with complainant, the individual against whom the complaint is made or the witnesses. If the IO is satisfied that the evidence collected is sufficient then he/she will produce a final report of the findings. The report will include the IO s conclusions and recommendations for consideration. Step 8 - Presentation of report to the Centre Director/Chief Executive who will considered whether a) to request that the IO do some further investigation (for example where it is considered that the report is unclear or gaps in evidence have been identified) or b) accept the report as presented and decide whether there is a case to answer and what action should be taken. Possible outcomes may include:- No further action Disciplinary Action (and therefore a transfer into the disciplinary process) Further Investigation by an external investigation (eg counter fraud, police etc) It should be noted that cases relating to suspected criminal activity including but not limited to fraud may be referred to the counter fraud office and or police at any stage of the investigation and will then be investigated by an external investigator. Page 9 of 9

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